Lujan v. Reed

• Decision Date: 04 December 1967
• Docket Number: No. 8334,8334
• Citation: 1967 NMSC 262,434 P.2d 378,78 N.M. 556
• Parties: Richard M. LUJAN, Individually and as best friend of Gayle D. Lujan, a minor, and Gayle D. Lujan, Plaintiffs-Appellees, v. A. L. REED and Bruce Reed, a minor, Defendants-Appellants.
• Court: New Mexico Supreme Court

Page 378

434 P.2d 378

78 N.M. 556

Richard M. LUJAN, Individually and as best friend of Gayle D. Lujan, a minor, and Gayle D. Lujan Plaintiffs-Appellees, v. A. L. REED and Bruce Reed, a minor, Defendants-Appellants.

No. 8334.

Supreme Court of New Mexico.

Dec. 4, 1967.

Adams & Pongetti, Albuquerque, for appellants

Arturo G. Ortega, Albuquerque, Matias A. Zamora, Santa Fe, for appellees.

OPINION

MOISE, Justice.

This appeal is from a judgment based on a jury verdict in favor of plaintiff Richard M. Lujan in the amount of $2,000.00 on account of out-of-pocket expenses for hospital and doctor charges on behalf of his daughter, Gayle, and in favor of plaintiff Gayle D. Lujan in the amount of $15,000.00 for injuries suffered by her.

The facts giving rise to the litigation are briefly that, on June 24, 1965, Gayle, sixteen-year-old minor daughter of Richard M. Lujan, was injured when she fell or jumped from an automobile belonging to defendant A. L. Reed, and being operated at the time by his eighteen-year-old minor son, defendant Bruce Reed.

Shortly before the accident and some time in the morning of the day it happened, Gayle had come to visit Larraine McCracken, a sixteen-year-old friend, at her home next door to where Bruce Reed lived with his parents. At the time, Bruce and a friend, Bob Clark, were working on a car in Bruce's yard. During the morning, at least three or four conversations were had between Gayle and the boys. Finally, Gayle asked if she and Larraine could borrow Bruce's car, to which he agreed if the girls would go riding with him and Bob. The girls refused this offer, whereupon Bruce changed his mind and said they could borrow it and handed Gayle the keys over the wall. The girls went in the house, got their purses and then got in the car which was standing in front of the Reed house. Larraine tried to start the car but it wouldn't start. Upon having his attention called to the fact the car would not start, Bruce opened the hood, took something from his pocket while he put on the engine, whereupon it started and was driven into the driveway where Bruce put some oil in it. The girls then started to drive away. Larraine was driving and Gayle was sitting on the front seat to her right. Upon backing from the driveway, the phone in Larraine's house rang, and the boys called to her to tell her. She got out of the car and went in her house to answer the phone, leaving the car at the curb and Gayle sitting in it. Thereupon Bruce and Bob came running, and jumped in the car--Bruce behind the wheel and Bob on the back of the back seat (the car was a convertible). The car was started suddenly, and had moved some 40 or 50 feet during an elapsed time of possibly some 30 seconds, when Gayle opened the door of the car and either fell or jumped, striking the pavement and suffering the injuries which are the basis of the present suit.

Although Gayle had never been on a date with Bruce, she had been told by Larraine of an occasion when she was out with him, that he had made advances and tried to kiss her. On the morning in question, Gayle and Bruce had spoken to each other several times. Gayle testified that when the boys jumped in the car Bruce gave her a 'smug smile, you know, like 'aha' * * *.' The faces of the boys scared her and she screamed and said, 'Stop it, Bruce,' and he just 'kind of gave a smug look.' Gayle's mother testified that when Gayle regained consciousness, 'She said, 'Mama, Mama, I am still afraid.' She said, 'I can still see that look on Bruce's face;' and she would cry, 'And every time I close my eyes I can still see that expression on his face." Bruce explained that his intention was to 'play a prank' on Larraine in order to be funny or otherwise befuddle or startle Larraine by driving the car away and around the block, so when she came out of the house the car would not be where it had been left. However, nothing had been said to Gayle. She had not been let in on the joke and had no knowledge of the purpose or intention of the boys when they ran to the car and suddenly started it and 'took of at a very rapid rate of speed.' As stated by Bruce in his testimony, the incident occurred as follows:

'* * * we just sort of got the idea at the same time that we would ditch LaRaine (sic), so we went over to the car and I don't remember whether LaRaine (sic) left the door open or not; I think she did, I can't be sure on that point whether I opened the door or just slid under the wheel with the door open and shut it.

'Bob jumped over the left rear fender into the back seat and was sitting back up on the back deck and I started it and put it in first gear and then started to drive off. I looked in the rear-view mirror to see if there was any traffic. Well, I looked back over my shoulder to see if there was any traffic, to see if Bob was sitting down before I started off. I hadn't even started to angle over to the other side of the road when I saw Gayle with her passenger door open about half way out and I yelled at her, not to jump and grabbed for her.

'By that time, she was already out the door and I slammed on the brakes. Bob landed in the front seat and I about half way caught him and I said, 'Are you all right?' and he said, 'Sure,' and so we both jumped out of the car and went over to see what we could do for Gayle, who was lying inb the street at this time.'

It should be added that Gayle had a history of a nervous condition for which she had received treatment from a doctor. When she struck the pavement she hit her head and suffered a fractured skull, brain concussion and contusions of the scalp. She was in the hospital for approximately a week but, thereafter, was highly nervous and under care of a doctor and was hospitalized because of nervous symptoms.

Appellants' first point asserts an absence of substantial evidence of negligence proximately causing Gayle's injuries.

The argument is to the effect Bruce did nothing which a reasonable person could foresee would have the consequences here present. Beyond having a 'smug' or 'mischievous' look on his face, he did nothing but run and jump into a car that belonged to him or to his father and which he had a right to drive without permission from Gayle, and, because of his desire to play a prank on Larraine, made a fast start without telling Gayle what he was doing or where he was going.

Reliance is placed on our statements in many of our cases which have been succinctly incorporated in the following, appearing in New Mexico Uniform Jury Instruction No. 12.1:

'An act to be negligent must be one which a reasonably prudent person would foresee as involving an unreasonable risk of injury to himself or to another and which such a person in the exercise of ordinary care would not do. * * *'

The rule as stated in the instruction generally expresses the law as announced by this court in numerous cases. See Giese v. Mountain States Telephone & Telegraph Co., 71 N.M. 70, 75, 376 P.2d 24 (1962); Bogart v. Hester, 66 N.M. 311, 316, 347 P.2d 327 (1959); Padilla v. Atchison, Topeka & Santa Fe Railway Co., 61 N.M. 115, 118, 295 P.2d 1023 (1956); Valdez v. Gonzales, 50 N.M. 281, 176 P.2d 173 (1946); Reif v. Morrison, 44 N.M. 201, 100 P.2d 229 (1940).

Although appellants argue with much conviction and logic that no reasonable person could have foreseen or anticipated the results which followed from Bruce's actions and conduct, and that as a matter of law Bruce could not have been negligent, we are not convinced.

Negligent conduct may consist of an activity which a reasonable person should recognize as involving an unreasonable risk of harm to another. Restatement (Second), Torts, §§ 284 and 289, Comment j (1965). This recognition often involves an assessment of how others may react to the actor's conduct. Restatement, supra, § 290 and Comments i, 1. The danger to the victim may often arise from the reaction of that person to the conduct of the actor. Restatement, supra, §§ 302 and 303 and Comment d.

It would certainly seem reasonable to anticipate that a person would make an effort to extricate himself from what appeared to be a frightening situation. This effort may of necessity be made in haste and without an accurate assessment of the nature of the risks and accordingly expose the victim to danger in the process. Whether the risk that such an effort will be made in response to the actor's conduct is an unreasonable one under a particular set of circumstances requires a determination whether the magnitude of the risk to another is outweighed by the utility of the conduct of the actor. Restatement, supra, §§ 290--293.

Certainly, it cannot be said as a matter of law that there is no unreasonable risk of harm incident to the effort to play a practical joke under the circumstances of this case.

People act and react in strange ways. Pranks have a way of coming home to haunt the prankster. Who is to say, that a young girl, not knowledgeable in the capricious ways of boys or of the purposes they might have had in mind, could not reasonably be expected to become startled and react exactly as Gayle did here, upon being suddenly confronted with two boys, not too well known to her, running and jumping into the car in which she was seated, with mischievous purpose in mind, and apparent on the face of one of them? We hold the question was one for the jury, as is generally true. We have said many times that if reasonable men may differ on the question of whether a person was negligent, the question is one to be resolved by the jury, and only when there can be no disagreement is the issue one of law to be decided by the court. Saul v. Roman Catholic Church of Archdiocese of Sante Fe, 75 N.M. 160, 402 P.2d 48 (1965); McMullen v. Ursuline Order of Sisters,56 N.M. 570, 246 P.2d 1052 (1952).

Appellants next argue just as earnestly that they could not be liable because, as a matter of law, Gayle must be held to have been contributorily negligent. The rule...